State of Utah v. Austin

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Phillip O. Austin,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981242-CA

F I L E D
December 30, 1999
  1999 UT App 386 -----

Second District, Ogden Department
The Honorable Stanton M. Taylor

Attorneys:
Earl Xaiz and Vanessa Ramos-Smith, Salt Lake City, for Appellant
Jan Graham and Thomas B. Brunker, Salt Lake City, for Appellee

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Before Judges Wilkins, Greenwood, and Orme.

ORME, Judge:

Briefing and oral argument in this case clearly established that a potentially dispositive legal issue was before the Utah Supreme Court in a pending case, State v. Carruth. The parties were in agreement that if the Court in Carruth reaffirmed the approach taken in State v. Baker, 671 P.2d 152, 156 (Utah 1983), defendant would be entitled to a reversal of his conviction. Conversely, if the State prevailed in Carruth, defendant's lesser-included-offense argument would fail, and his appeal would turn on the other issues raised. Accordingly, we stayed our further consideration of this appeal, pending issuance of the Supreme Court's decision in Carruth. That decision was recently issued, and we have again considered the parties' arguments in light of State v. Carruth, 384 Utah Adv. Rep. 22 (Utah 1999).

Under Supreme Court precedents binding on this court, it was error for the trial court to instruct the jury that it could find defendant guilty of the uncharged offense of kidnapping. See Carruth, 384 Utah Adv. Rep. at 23-24; Baker, 671 P.2d at 156. The State, in its brief, conceded that kidnapping was not a lesser included offense of aggravated kidnapping under Baker. The Carruth opinion reaffirmed the applicable analysis. See 384 Utah Adv. Rep. at 24 ("We remain convinced that the principles set forth in Baker accurately reflect the correct operation of section 76-1-402 of the Utah Code and rule 21(e) of the Utah Rules of Criminal Procedure.").

Accordingly, the jury should not have been instructed on kidnaping, the only offense for which defendant was convicted. In convicting defendant of kidnaping, the jury necessarily acquitted him of aggravated kidnaping. It follows that defendant's conviction must be, and it hereby is, vacated.
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge